ADR and the Culture of Litigation in the United States of America
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Description
A puzzling and controversial shift in dispute processing occurred in late 20th century America. This involved a turning toward alternative dispute resolution (ADR). Both official and informal disputing were profoundly affected. How can this change be explained? Was there a motivating “crisis” in the courts? If so, what were its ingredients? The rise of ADR presents an opportunity to examine the ways in which cultural change interacts with more specific social forces to affect disputing. I argue in this article that, quite apart from a perceived litigation crisis, the move to ADR in the late 20th century has had institutional, political, and cultural ingredients. More specifically, as I explain later on, it was dependent on sometimes-conflicting shifts in values, such as those involving a growing distrust of government, humanization of large-scale institutions, the privatization of dispute resolution, social progress through individual improvement, and postmodern skepticism about an objective reality. In Part I of this article, I trace the rise of ADR in the last quarter of the twentieth century. In Part II, I provide a historical perspective on the use of ADR. In Part III, I explain the institutional, cultural, and political changes that gave life to the ADR movement. In Part IV, I address the claim made by some adherents of ADR that using ADR processes instead of litigation will make us a better people. Preliminarily, the generic concept of “ADR” includes any process that is an “alternative” to judicial adjudication. Although ADR includes such processes as negotiation, mediation, arbitration, “med-arb” (a combination of mediation and arbitration), early neutral evaluation, and summary jury trials, I use that term to refer only to arbitration and mediation. These two processes are very different. Arbitration involves a binding decision by a third party, whereas mediation involves a third party facilitator (a mediator) who assists the disputants in negotiating and reaching their own resolution. Mediation is voluntary and the disputants cannot be forced to agree to a settlement. Because of their differences, arbitration and mediation have served different, perhaps overlapping, functions in the American legal system. Thus, they have attracted support from different sectors of society. Because of its emphasis on consensual problem solving, mediation has appealed to reformers who highly value communitarianism and self-actualization or determination. In contrast, arbitration has been embraced by businesses, because of its relative privacy, its supposed cost and time savings over litigation, and the power it grants parties to choose an arbitrator who is knowledgeable about the substance of the dispute. As a result of federal law encouraging and directing courts to develop ADR programs, court administrators have established court-annexed programs that employ of mediation or arbitration ( occasionally both) in the hope that such programs will ease judicial caseloads.
Source Publication
ADR and the Law
Source Editors/Authors
American Arbitration Association
Publication Date
2008
Edition
22
Recommended Citation
Chase, Oscar G., "ADR and the Culture of Litigation in the United States of America" (2008). Faculty Chapters. 1131.
https://gretchen.law.nyu.edu/fac-chapt/1131
